Fearing ‘chaos’ in November, Supreme Court justices are wary of tampering with electoral college

So-called faithless electors have not been critical to the outcome of a presidential election, but that could change in a contest with a razor-thin margin.

The Supreme Court justices said Wednesday they saw a danger of “creating chaos” after November’s presidential vote if electors were freed to defy their state’s popular vote and cast ballots in the electoral college for the candidate of their choice.

In a close election, they noted, a few electors could have the power to flip the outcome.

Under the Constitution, the president is not elected by direct popular vote, but instead by a majority of the votes cast by states in the electoral college. Since the early 1800s, states have appointed a slate of electors, who are pledged to support the candidate who wins the most votes in that state.

But in recent elections, including in 2016, some electors have attempted to vote for other candidates.


Harvard Law Professor Lawrence Lessig argued that electors have a constitutional right to “exercise discretion” and vote as they wish.

Most justices sounded skeptical of that assertion Wednesday as the court heard arguments — via telephone conference due to the coronavirus outbreak — in two related cases, Chiafolo vs. Washington and Colorado vs. Baca.

Justice Samuel A. Alito Jr. told Lessig his theory could “lead to chaos.”

If the outcome in November is very close, he said, “the losing party or elements within the losing party will launch a massive campaign to influence electors. There would a long period of uncertainty about who the next president was going to be...Do you deny that is good possibility if your argument prevails?” he asked.

“We don’t deny it’s a possibility,” Lessig replied. “We agree that of course the possibility exists you could flip electors.”

But Lessig said the Constitution provides that the decision be left in the hands of electors, not state voters, and that right should not be infringed. Even if there were allegations that an elector took a bribe, Lessig said, a state should not be permitted to prevent that elector from voting unless the charges were proven in court.

Alito noted that Lessig in 2016 had urged electors to defy their states and choose Hillary Clinton for president because she won the popular vote. But the two cases heard Wednesday arose when four electors in Washington and Colorado refused to cast their ballots for Clinton, even though she won a majority in both states.

In August, the 10th Circuit Court of Appeals in Denver ruled for the first time that electors had a free-speech right to defy their state’s popular vote.

Meanwhile, the Washington Supreme Court rejected the free-speech claim and upheld the state’s decision to fine electors who refused to vote as they had pledged.

State attorneys urged the high court to take up the issue and rule before this year’s presidential election.

Lessig said framers of the Constitution in 1787 viewed electors as playing a crucial role. Electors were envisioned as smart, informed local leaders who would be better suited to pick the president than a population of less-educated, easily manipulated citizens.

But Justice Sonia Sotomayor questioned whether the framers’ original approach was relevant since changes to the Constitution were adopted in 1804, and ever since states have required electors to honor the choice made by the majority of voters.

Agreeing with Alito, Justice Brett M. Kavanaugh said he too believed in “what I might call the ‘avoid chaos principle’ of judging, which suggests that if it’s a close call or a tiebreaker, that we shouldn’t facilitate or create chaos. You said it hasn’t happened, but we have to look forward. And just being realistic, judges are going to worry about chaos.”

Lessig stuck to his position. He said most electors are highly loyal to their party and that only a “tiny” number might flip their votes. But he said the states had no constitutional power to remove and replace these people — often dubbed “faithless electors” — and no authority to fine them for breaking their promise.

Are there any limits on electors’ freedom to choose, Chief Justice John G. Roberts Jr. asked. Could they “flip a coin?”

Justice Clarence Thomas, who has been an engaged participant during the phone arguments in stark contrast to his usual silence on the bench, wondered if an elector could opt for a character from J.R.R. Tolkien’s “Lord of the Rings.”

Could the elector “suddenly say, you know, I’m going to vote for Frodo Baggins? I really like Frodo Baggins. And you’re saying, under your system, you can’t do anything about that?”

That would be too far, said Los Angeles attorney Jason Harrow, who joined Lessig in representing electors. Harrow said an elector could not vote for “a nonperson, no matter how big a fan many people are of Frodo Baggins.”

Colorado Atty. Gen. Philip Weiser urged the court to reject what he called a “treacherous experiment. We urge this court to reject this dangerous time bomb and avoid a constitutional crisis” that would follow granting electors their own right to choose. He said the Constitution gives the states the full power to decide how to choose its presidential electors, including removing those who failed to honor their pledge.

Article 2 of the Constitution says, “Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”

The state attorneys said that provision made clear that the power to control electors resides with the states. None of the justices openly disagreed with that view.

All but two states — Maine and Nebraska — have a winner-take-all system that awards all the state’s electoral votes to the candidate who wins the popular vote . And 32 states have measures that require presidential electors to vote as they had promised.